On 22.08.2017, the 5 Judge Bench of the Supreme Court of CJI J.S. Khehar, and Justices Abdul Nazeer, Rohinton Nariman, U.U. Lalit, and Kurien Joseph. pronounced its decision in the Triple Talaq Case, declaring that the practice was unconstitutional by a 3:2 majority.
Triple Talaq or Talaq-e-Biddat is a practice that allowed a Muslim man to instantaneously and irrevocably divorce his wife by saying the word ‘talaq’ three times successively. Ms Shayara Bano filed a petition in the Supreme Court challenging the practice. She argued that it violates Muslim women’s Right to equality among other constitutional freedoms. This argument was supported by several who intervened in this case. The five-judge Constitution Bench of the Supreme Court heard the matter from 11th May 2017. After six days of arguments from both sides, it reserved the case for judgement.
The decision pronounced on 22nd August 2017, by a narrow majority, struck down the practice as unconstitutional. The Court directed the Parliament to take legislative measures against the practice of triple talaq. The verdict saw a clear divergence of opinions.
Justices Rohinton Nariman and U.U. Lalit held that Talaq-e-Biddat is regulated by the Muslim Personal Law (Shariat) Application Act, 1937. They held the practice is unconstitutional because it is manifestly arbitrary nature. Justice Kurien Joseph on the other hand, in his concurring opinion, records that triple talaq is against the Quran, and thus lacks legal sanction. He writes, ”What is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”.
Notably, the dissenting minority opinion of Chief Justice Khehar and Justice Abdul Nazeer traced the elevation of Personal Law to the status of fundamental rights in the Constituent Assembly Debates on Articles 25 and 44. They held that Triple Talaq is not regulated by the Shariat Act of 1937, but is an intrinsic part of personal law. Thus, it is protected by Article 25. Further, the solution to the gender discriminatory practice of Talaq-e-Biddat is legislative action and not a challenge to its constitutionality. The minority opinion proposed that Triple Talaq be made inoperative for 6 months from the judgement. In this time, the Parliament must frame a law governing triple talaq. However, as the majority opinion has explicitly outlawed Triple Talaq, this directive holds no force.